The High Court's decision to force the Refugee Appeals Tribunal to disclose its findings will have major implications for its work, writes Paul Cullen
Few areas of law are as secretive as the handling of asylum applications and appeals.
Some of this secrecy is understandable, with hearings heard in private to protect the identity of asylum seekers. However, the secrecy extends far beyond the fact of in camera hearings.
In contrast to the situation in other countries, the Refugee Appeals Tribunal does not publish its decisions, nor does it publish statistics on the records of individual members or the trends in decisions.
As a result, lawyers trying to appeal decisions of the tribunal in the High Court have been left largely in the dark regarding its previous practice and decisions.
The wider public gets no insight into the efficiency of the tribunal, which is proving a lucrative business for many of its 35 members; Jim Nicholson, the top earner, was paid €426,000 up to the end of last year.
Former ministers David Andrews and Michael O'Kennedy earned €94,000 and €81,000 respectively from their work on the tribunal in 2004.
Beyond the culture of secrecy surrounding the tribunal, there is a widespread feeling among asylum lawyers that this is covering up a lack of consistency in its decisions.
While most members are considered to be conscientious and fair, others are regarded as liable to refuse most of the cases they hear. One is reported as commenting to colleagues in the Law Library that he "never let one of them in".
In the absence of information, it is impossible to determine whether there is any substance to the concerns over consistency.
Mr Justice McMenamin's judgment goes some way towards shedding a light on procedures. In the three cases under consideration, the tribunal had refused to provide lawyers for the asylum seekers with previous decisions that might have a bearing on their cases.
The tribunal argued that disclosure was not necessary for fair procedures. However, Judge McMenamin pointed out that that tribunal was "the court of last appeal". He asked: "How then can an applicant cite or rely on precedent? How can he or she be advised on the law or on the approach to issues taken by the respondents if such are not precisely identified and published?"
Further, the judge pointed to the paradox whereby a lawyer might be aware of a relevant decision of the tribunal but would not be allowed to cite it.
In deciding the situation was "an unfair one," Mr Justice McMenamin granted the lawyers in the present cases a limited right to "relevant" decisions.
Refugee and human rights groups yesterday gave his decision a qualified welcome. Aisling Reidy, director of the Irish Council for Civil Liberties, said it went "some way" towards greater disclosure. The existing situation was in breach of the European Convention on Human Rights and would have been challenged, she maintained.
The Irish Refugee Council (IRC) also welcomed the judgment as a contribution towards greater transparency in the hearing of refugee appeals.
"We welcome this news, but it doesn't go far enough," Louise Moore, legal officer of the IRC commented. "It provides only for limited disclosure of the decisions of the tribunal to the applicants themselves, and does not allow wider publication.
"At present, no one knows what is going on, and Ireland is unique in the English-speaking world in not publishing the results of refugee appeals. It's impossible for people working in the area to track the law and link decisions to individual members of the tribunal."
While the Department of Justice and the tribunal itself may decide to appeal the judgment yesterday the department declined to comment.